BED17 v Minister for Immigration and Anor (No.2)

[2017] FCCA 3021

FEDERAL CIRCUIT COURT OF AUSTRALIA

BED17 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 3021

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – Authority’s reasons reflect an orthodox approach to the review under Part 7AA of the Migration Act 1958 (Cth) – no jurisdictional error identified – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.13.03C(1)(c)

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DD, 476

Applicant: BED17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 829 of 2017

Judgment of: Judge Street

Hearing date: 13 November 2017

Date of Last Submission: 13 November 2017

Delivered at: Sydney

Delivered on: 13 November 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. Set aside orders 1 and 2 made in the absence of the applicant this morning.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 829 of 2017

BED17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made under Part 7AA on 28 February 2017, affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.  The applicant was found to be a Tamil and Hindu from Trincomalee District, Eastern Province. The applicant arrived on Christmas Island on 17 August 2012 and lodged the application for his Safe Haven Enterprise visa on 4 February 2016.

3. The applicant claimed that he was a Tamil fisherman who like many other Tamil fishermen, was forced to assist the LTTE during the civil war. The applicant alleged he did this by transporting food items and clothing in the early 1990s from army controlled to the LTTE controlled areas. The applicant also claimed in 2003 he assisted in transporting LTTE cadres to hospital after a shooting incident with the police. The applicant claimed Sinhalese fishermen saw him transport the LTTE cadres and a few months later three of them attempted to kill the applicant but that when the applicant saw them approaching he managed to escape into the huts of other Sinhalese fishermen who protected him. The applicant alleged in 2006 he fled to India and remained there until August 2007. The applicant claimed he had no difficulty at the airport when he returned but two days after his arrival, he was rounded up by the Sri Lankan Navy with other young Tamil males and females and taken to the police station. The applicant claimed he was identified by the police informer as an LTTE cadre and was arrested with 18 other males. The applicant alleged he was physically assaulted by the Sri Lankan Navy, taken the police station for 12 days before being released in 2007.

4. In June 2009, the applicant was again rounded up by the Sri Lankan Army and the Sri Lankan Navy with 22 other males, taken to police headquarters, detained for 19 days on suspicion of being an LTTE cadre and severely beaten when initially detained. The applicant alleged he was later produced in Court but was found innocent and released in 2009.

5. The applicant claimed that the situation for Tamil fisherman worsened at the end of the war in 2009. Although the applicant was not targeted after June 2009, the applicant claimed he lived in fear and that the Sri Lankan Navy patrols harmed Tamil fishermen who fished in deep waters and several Tamil fishermen who assisted the LTTE were specifically targeted. The applicant claimed he would be killed by the police and the military because of his Tamil race and feared the Sri Lankan Navy, the Sri Lankan authorities and the Sinhalese fishermen who previously suspected him of being involved with the LTTE, would target him for harm.  

6. On 12 September 2016, a delegate of the Minister made a decision refusing to grant the applicant a Safe Haven Enterprise visa. The applicant also feared he would be harshly treated and jailed for a long time because he fled Sri Lanka illegally, and feared harm by reason of being a failed asylum seeker. The delegate found the applicant failed to meet the criteria for the grant of a visa under the Act. 

The Authority’s decision

1. On 16 September 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The letter identified that there were only limited circumstances in which the Authority could receive new information. The Authority provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. Pursuant to that letter, the applicant provided submissions on 26 September 2016 which was received by the Authority on 29 September 2016. The Authority expressly referred to those submissions in its reasons. 

2. The Authority identified in its reasons the background to the visa application and identified having regard to the material referred under s 473CB of the Act. By reference to the submissions, the Authority identified the part of the submissions which responded to the delegate’s decision and the Authority did not regard that as new information and had regard to it.

3. The Authority also referred to the applicant alleging that he was in hiding for three years and in relation to the results of his 2007 and 2009 detentions were released by a Court, the Authority was not satisfied that was new information that had regard to it. The Authority then referred to the applicant suggesting that the three years he spent in hiding occurred in 2003 rather than as he originally claimed at the Safe Haven Enterprise visa interview in 2009, as well as the applicant alleging that he was released by a Court in 2007 rather than 2009. The Authority was not satisfied that there are exceptional circumstances to justify considering the same as new information. 

4. On a fair reading of the Authority’s reasons, the Authority did not adopt an erroneous or narrow construction of exceptional circumstances under s 473DD of the Act. On a fair reading of the Authority’s reasons, the Authority took into account both limbs of s 473DD of the Act in respect of the submissions and information provided by the applicant on 29 September 2016 to the Authority.

5. The Authority summarised the applicant’s claims and evidence. The Authority did not find the applicant to be a credible witness in relation to the claims and rejected them as exaggerated, embellished and fabricated in order to boost his protection claims. The Authority did not accept the applicant transported wounded LTTE cadres in 2003, that four Sinhalese men tried to attack the applicant in 2003 or that the applicant’s claims about four Sinhalese fishermen are true. The Authority did not accept the applicant was released on bail at any time, that he was required to report to police on a monthly basis, that there is a warrant for his arrest for leaving Sri Lanka while on bail, or that the applicant was in hiding for a year after his 2009 arrest and subsequently moved to Batticaloa and lived in a shed. The Authority accepted that the applicant would be considered a failed asylum seeker who departed illegally.

Assessment of Refugee Convention criteria

1. The Authority identified country information before the Authority and found that there is not a real chance the applicant would, as a Tamil and Tamil fishermen from the east, face official or societal discrimination amounting to serious harm upon his return to Sri Lanka now or in the foreseeable future. 

2. The Authority accepted the applicant was required to transport food and clothing for the LTTE at various times from 1990 to 2006 and some cash deliveries from sometime in 2008 until the end of the war, in common with other fishermen in Trincomalee. The Authority also accepted that the applicant’s brother-in-law was an LTTE member who was killed in fighting around 2001 and that his brother-in-law’s son was an LTTE member who was arrested after the war, released, then taken to Joseph Camp where he disappeared around August 2010. The Authority accepted the applicant was arrested in a round up by the Sri Lankan Navy in 2007 after he was identified by a masked man as a possible LTTE cadre and was mistreated by the Sri Lankan Navy before being handed over to the police, and that the police held him for 12 days before he was released. The Authority accepted that the applicant was arrested in a round up in 2009 by the Sri Lankan Navy and Sri Lankan Army and that he was mistreated in detention and was held for 19 days and that he was released after a court found he was innocent. 

3. Taking into account the country information before the Authority and the other evidence, the Authority did not consider the applicant to be at risk of serious harm for reason of any real or imputed LTTE links or political opinions now or in the reasonably foreseeable future. The Authority provided detailed reasons in support of that finding which have not been the subject of any challenge. The Authority was not satisfied the authorities would have had any adverse interest in the applicant if he had remained in Sri Lanka or that he would be of any adverse interest to the current Sri Lankan authorities if he returned to Sri Lanka. The Authority found that any risk of harm to the applicant from the authorities based on his profile to be remote. 

4. The Authority was not satisfied the applicant would face a real chance of serious harm from the Sri Lankan authorities as a Tamil and a Tamil fisherman from Trincomalee due to any links to the LTTE or for any other reason, if returned to Sri Lanka now or in the reasonably foreseeable future. 

5. The Authority then turned to the applicant’s fear in respect of being a failed asylum seeker and an illegal departee. The Authority referred to the Immigrants and Emigrants Act. The Authority, taking into account the findings made in country information, did not accept the applicant would be at risk of adverse attention from the Sri Lankan authorities when scrutinised on arrival in Sri Lanka. The Authority was not satisfied there was a real risk that the applicant would face harm on his return as a failed Tamil asylum seeker.  The Authority accepted that the applicant would face action under the Immigrants and Emigrants Act. 

6. The Authority found, based on the country information, that the applicant may be detained and questioned at the airport for up to 24 hours, faces a fine for breaching the Immigrants and Emigrants Act, and depending on the availability of the magistrate at the time he was charged under the Immigrants and Emigrants Act, may face a short period being held in prison. The Authority was satisfied the applicant would only face a brief period in detention. The Authority took into account the poor prison conditions but did not consider that brief period of one to three days in detention would cost the necessary level of threat to the applicant’s life or liberty or to be a significant physical harassment or ill treatment under s 5J(5) of the Act or otherwise amount to serious harm for the applicant. 

7. The Authority found that the likely questioning of the applicant by the DoIE, SIS, or CID at the airport on arrival, any surety imposed, or the imposition of a fine under the Immigrants and Emigrants Act, would not constitute a threat to the applicant’s life or liberty or to be significant physical harassment or ill treatment under s 5J(5) of the Act or otherwise amount to serious harm. The Authority found that the Immigrants and Emigrants Act is not discriminatory on its terms and that it is a law that is generally applied, and accordingly, the application of the law does not amount to discrimination. The Authority found the law is not so selectively enforced or applied in a discriminatory manner. The Authority found the investigation, prosecution and punishment of the applicant under the Immigrants and Emigrants Act would be the result of a law of general application and does not amount to persecution under s 5H(1) of the Act and s 5J(1) of the Act. The Authority was not satisfied the applicant faces a real chance of persecution on the basis of being a failed Tamil asylum seeker who departed Sri Lanka illegally now or in the reasonably foreseeable future. 

8. The Authority then turned to the applicant’s circumstances cumulatively and was not satisfied the applicant faces a real change of persecution now or in the reasonably foreseeable future, either in the period following his arrival, or on his return home, whether because of his illegal departure, having made a claim for asylum in Australia, for any links to the LTTE, as a Tamil and being a Tamil fisherman from the east, or any combination of these. The Authority found the applicant did not have a well-founded fear of persecution within the meaning of s 5J of the Act. The Authority found the applicant failed to meet the definition of refugee in s 5H(1) of the Act and found the applicant failed to meet the criteria under s 36(2)(a) of the Act. 

Assessment of Complementary Protection criteria

1. The Authority was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk the applicant will suffer significant harm. The Authority found the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review. 

Before this Court

1. When the matter was initially called before the Court, the applicant had failed to appear and the matter was dealt with under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001. The applicant subsequently appeared in the building and indicated that he was on the wrong floor.  In those circumstances, the Court set aside the orders made in the absence of the applicant. 

2. At the commencement of the hearing, the applicant was informed by the Court that this was a final hearing to determine whether the Authority’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary, this meant the Court was considering whether the Authority’s decision was unlawful or unfair. The Court explained that if satisfied the Authority’s decision was unlawful or unfair, the decision would be sent back for further review. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair, the application would be dismissed with costs. 

3. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from counsel for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

4. On 6 July 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. 

Applicant’s submission from the bar table

1. From the bar table, the applicant maintained that there was a problem with the interpreter in relation to the interview that he had with the delegate, and in that regard, the applicant asserted that there was a problem in understanding the evidence he gave concerning his claims in respect of clothes and uniforms, as well as in relation to his transportation assistance to the LTTE. The applicant provided no satisfactory explanation as to why no such ground was identified in the application and why no amended application had been filed and why no evidence had been put on to support any such assertion.

2. Materially, however, it is apparent from the Authority’s decision that the Authority took into account the applicant’s claims concerning his assistance in respect of clothing and in fact, accepted that assertion.  The Authority did not accept and provided reasons for rejecting the applicant’s assertion in relation to the transportation of wounded LTTE cadres in 2003. There is nothing on the face of the delegate’s reasons, or on the material before the Court, to support the assertion that there was any interpretation error. There is nothing in the Authority’s reasons to support any interpretation error. No material error was identified. The Court is not satisfied that there was any material error in the interpretation of the applicant’s evidence to the delegate. 

3. This is a case where the Authority accepted part of the applicant’s claim relating to his assistance in respect of clothing, but made adverse credibility findings in respect of his assistance in respect of the transportation of wounded LTTE cadres. Those adverse findings were open on the material before the Authority and cannot be said to lack an evident and intelligible justification. The Court does not accept that there was any material interpreter error in respect of the applicant’s Safe Haven Enterprise visa interview that occurred on 27 May 2016. Nothing said by the applicant from the bar table identified any jurisdictional error. 

4. The grounds of the application are as follows:

   The Immigration Assessing Authority has committed a jurisdictional error in my case as it declined to exercise jurisdiction as the factual precedent for its jurisdiction docs exist.

   My ground: Jurisdictional error

   Particulars of my grounds:

   I fear returning to Sri Lanka because I am at risk of harm from the Sri Lankan Navy and Sinhalese fishermen who previously suspected that l was involved with the LTTE. 1 am a Tamil fishermen who previously assisted the LTTE including transporting wounded injured cadres and Sri Lankan authorities continue to target those who had .links to the LTTE.

   There is evidence and country information on Sri Lanka before the IAA to substantiate that a Tamil in my similar circumstances is still risk of serious harm at the hands of Sri Lankan authorities but the IAA has declined to exercise its jurisdiction on central refugee claims.

Consideration

1. The Authority’s reasons reflect an orthodox approach to the review under the statutory regime in Part 7AA. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Authority complied with its obligations of procedural fairness by the sending of the letter to the applicant providing the applicant with an opportunity to put on submissions and new information, and by taking into account those submissions and information.

2. For the reasons earlier given, the decision by the Authority under s 473DD of the Act was open to the Authority in respect of the information provided by the applicant in response to the letter. The assertion in the application that the Authority has committed jurisdictional error does not make out any such error. On the face of the Authority’s reasons, the Authority correctly identified the applicant’s claims and made dispositive findings that were open for the reasons given in respect of those claims. In substance, the applicant’s grounds invite the Court to engage in impermissible merits review. This Court does not power to revisit the merits.  No jurisdictional error is made out by the grounds identified in the application. 

1. As the application fails to make out any jurisdictional error, the application is dismissed. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 8 December 2017